Saturday, April 13, 2013

The late Ronald Dworkin (New York Univ. - Law) has published posthumously A New Philosophy for International Law (Philosophy & Public Affairs, Vol. 41, no. 1, p. 2, Winter 2013). Here's an excerpt:

When I was last instructed in international law—at Oxford in the
1950s—the ﬁrst and most lively question, bound to appear on the
examination paper together with tedious questions about navigable
bays, was existential. Is there any such thing as international law? Or
does the subject we were being asked to study actually not exist? Is what
some academics and state department ofﬁcials call international law
not law at all but only common practices that no state is really legally
bound to continue practicing?

You may well ask: Why does this matter? Isn’t the only important
point really whether there are rules that nations do follow in their dealings with one another? And that nations join in criticizing and if possible punishing other nations that do not follow those rules? Does it
really matter whether we call these rules “law”? Or whether we say,
instead, that in certain ways they are like the rules of more familiar
national legal systems?

The question whether it matters is deeper and more difﬁcult than
may ﬁrst appear. I reserve it for discussion later. In any case, the question whether there is international law seems no longer to trouble
anyone. Almost everyone assumes that there is international law and
also assumes that it includes, for example, the Charter of the United
Nations and the Geneva Conventions—or at least some of them. But
nothing has actually changed. The old grounds for challenge remain;
they are only ignored.

The existential challenge remains important, however. Even though
almost everyone agrees that “international law” is really law, and that the
rules and principles set out in documents of that kind are part of it, the
question of why these documents constitute some kind of legal system is
crucial because how these rules and principles should be interpreted
hinges on it. Interpretive issues are both controversial and dramatically
important. Nations and lawyers disagree, for instance, about the legal
status of associates of Al Qaeda and the Taliban under the Geneva Conventions, and whether there is such a thing as an enemy noncombatant
who is not covered by those Conventions. I will later discuss another
celebrated interpretive issue: whether the NATO intervention in Kosovo,
without the consent of the Security Council of the United Nations, was a
violation of international law.

Many feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. While acknowledging that law is often ineffective in reordering social relations, a substantial number of scholars and policy makers still believe that it is an institution that can be used to make substantive gains for women. Recent innovations in the normative definitions of crime added to an-ever growing jurisprudence on sexual violence and gender based harms have given some buoyancy to optimistic views on international criminal law’s capacity to challenge gendered assumptions, to address specific harms experienced by women and to circle such additionality back to domestic law thereby tackling socially entrenched violence against women. Based on a systematic review of subsequent legislation enacted by states following ratification of the International Criminal Court Statute, this paper considers the ‘capture’ capacity of international criminal, and the extent to which any optimism around domestic legal capacity is warranted, and what pitfalls may following from a reliance on international criminal law to spearhead normative developments on addressing gender violence. The analysis catalogues the full range of regulation in ratifying states, and addresses the complexities of increased criminalization of sex-based harms against women. Generally much of the international criminal law scholarship has ignored domestic responses to its expanding mandate and this paper seeks to redress that gap in respect of sex-based harms.

Friday, April 12, 2013

A call for papers has been issued for the Minerva Center for Human Rights at the Hebrew University of Jerusalem and the Delegation of the International Committee of the Red Cross (ICRC) in Israel and the Occupied Territories eighth annual conference on international humanitarian law, to take place November 24-25, 2013, in Jerusalem. The theme is "Military Objectives and Objects of War: An Uneasy Relationship." The call is here.

This symposium will explore solutions to contemporary global problems from the perspectives of international law and policy. Distinguished scholars from across the United States and overseas will discuss pressing problems in areas of international law including environmental law, investment and trade law, the use of force, and human rights.

Neither international Law generally nor the law of armed conflict in particular is complete. Each contains apparent gaps, which are filled by the “freedom principle” (which permits states to act absent an established prohibition). Whether a specific gaps exists must be determined case-by-case. It is unlikely that, if gaps do exist in the rules governing cyber-conflict, those gaps will soon be filled; the conditions necessary for the creation of effective international rules regulating cyber-conflict do not currently obtain. Among the most important of those conditions is attributability, which makes possible the threat of retaliation and deterrence. While the “attribution problem” remains a serious impediment to the formulation of effective international cyber-conflict rules, this barrier is mitigated by the possibility of leaks of the sort that occurred with respect to Stuxnet. The most likely future scenario is still, however, the continuation of “drip-drip” cyber-attacks that cause considerable damage.

Law and governance need to be justified vis-à-vis citizens in order to be accepted as legitimate and supported by civil society. This contribution argues that the legal and judicial methodologies of multilevel governance for international public goods need to be changed in order to protect basic needs and human rights of citizens more effectively. I define legal methodology in terms of the conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of multilevel legal systems like IEL, and of the relationships between rules, principles, political and legal institutions and related practices. Section I recalls the historical evolution from ‘good governance’ to third-party adjudication and individual rights of access to justice. Section II discusses eight models of multilevel judicial governance in Europe. Section III uses constitutional and ‘public goods’ theories in order to explain the multiple functions of courts of justice and the increasing importance of judicial cooperation (comity) in protecting transnational rule of law in European and international economic law (IEL). Section IV argues that the diverse ‘constitutional methods’ applied by the EU Court of Justice (CJEU), the European Free Trade Area (EFTA) Court and the European Court of Human Rights (ECtHR) offer important lessons for multilevel judicial governance in IEL beyond Europe. Section V concludes by emphasizing the judicial task of administering justice in IEL and the need for limiting the existing ‘legal’ and ‘doctrinal fragmentation’ through multilevel judicial protection of transnational rule of law for the benefit not only of governments, but also of citizens as legal subjects and ‘democratic owners’ of IEL.

The 2013 conference will explore how legal tradition influences lawyers and the law, in both international and domestic contexts. Law does not develop in a vacuum; it is shaped by the intellectual, cultural and linguistic backgrounds of those who create and administer it. In a world where legal systems increasingly interact, the enduring power of legal tradition necessitates a constant recalibration of theoretical and practical tools to deal with diversity.

This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.

Special Issue: War and the Environment: International Law and the Protection of the Environment in Relation to Armed Conflict

Rosemary Rayfuse, Introduction to the Special Issue

Dieter Fleck, The Protection of the Environment in Armed Conflict: Legal Obligations in the Absence of Specific Rules

Cordula Droege & Marie-Louise Tougas,
The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection

Erik V. Koppe,
The Principle of Ambituity and the Prohibition against Excessive Collateral Damage to the Environment during Armed Conflict

Carson Thomas,
Advancing the Legal Protection of the Environment in Relation to Armed Conflict: Protocol I’s Threshold of Impermissible Environmental Damage and Alternatives

Onita Das,
Environmental Protection in Armed Conflict: Filling the Gaps with Sustainable Development

Britta Sjöstedt,
The Role of Multilateral Environmental Agreements in Armed Conflict: ‘Green-keeping’ in Virunga Park. Applying the UNESCO World Heritage Convention in the Armed Conflict of the Democratic Republic of the Congo

Daniëlla Dam-de Jong,
From Engines for Conflict into Engines for Sustainable Development: The Potential of International Law to Address Predatory Exploitation of Natural Resources in Situations of Internal Armed Conflict

The International Environmental Law Interest Groups of the American Society of International Law and the European Society of International Law have issued a call for papers for a symposium on "The Changing Nature of International Environmental Law: Evolving Approaches of the United States and the European Union," to be held November 22-23, 2013, at the Graduate Institute in Geneva. Here's the call:

The Changing Nature of International Environmental Law: Evolving Approaches of the United States and the European Union

Joint Symposium

American Society of International Law/European Society of International Law International Environmental Law Interest Groups

The International Environmental Law Interest Groups of the American Society of International Law and the European Society of International Law are delighted to announce that their First Joint Symposium will take place on 22-23 November 2013 at the Graduate Institute in Geneva. The Co-Chairs and Convenors of the Interest Groups join in thanking the Graduate Institute of International and Development Studies and our host, Professor Jorge Viñuales, Director of the Programme on Environmental Studies of the Institute’s Centre for International Environmental Studies, for their kind generosity in providing a venue and refreshments for the Symposium.

Symposium Theme

International Environmental Law is not in the same space that it occupied in 1972 when it burst forth on the international agenda with the Stockholm Conference on the Human Environment. For some time we have been witnessing a fundamental shift in the nature of international environmental law (IEL) from both theoretical and practical perspectives. Many reasons might lay behind this shift. For a start, IEL has had to innovate its way around the “sovereignty barrier” – foundational principles and norms of general international law that continue to uphold a state-based system of international politics and law that is often seen as counter-productive to solving global and regional environmental problems. IEL has done this, in part, through science driven norms, non-consensus decision-making, and a focus on promoting compliance rather than labeling action wrongful with a view to invoking state responsibility.

Then too, IEL has experienced “bottom up” influence from developments in national approaches to environmental protection. Increasingly, IEL has adopted of “second generation” national regulatory techniques including the use of markets, flexibility mechanisms, and privatization. In addition, the underlying reality, which IEL is trying to co-ordinate and steer, is changing. The reality of significant environmental impacts associated with global markets and international investment flows appears to call for a more normatively expansive and inclusive approach. The increasing influence of host of non-state actors such as transnational corporations and expert non-governmental organizations raise questions about participation in and the legitimacy of decision-making and compliance processes.

An emerging new approach to IEL ought to enable us to understand the way various types of soft norms and non-state action influence (or not) the behavior states and key actors beyond states. In this context, most pollution and conservation problems need to be addressed outside of the traditional state system, in what is increasingly described as a multi-level governance framework, with various types of actors having an influence how these norms develop and are supervised. Environmental law approaches and methods have become globalized in various ways, not only by states borrowing from other jurisdictions, but also because e.g. multilateral environmental agreements MEA’s harmonize the way environmental governance is done in various jurisdictions. These environmental law principles and approaches not only travel between national jurisdictions but they also migrate between various levels of governance.

At the same time these macro changes have been influencing the nature of IEL, the approaches to and practice of IEL by the United States and European states is also shifting. Due to their environmental footprint, their economic and geopolitical power, and their technological and financial resources, the US and the EU have a critical impact on the world’s environment, as well as a distinctive ability to shape global environmental politics. Meanwhile, and despite common interests, these two elephants are often said to have developed different approaches to IEL. Notwithstanding strong support for early environmental agreements, the US position over the past two decades has been described as one of disengagement and withdrawal, shying away from binding environmental commitments and favouring unilateral and domestic environmental policies. In contrast, Europe is commonly thought to be a consistent supporter of multilateralism and of legally binding environmental agreements. Additionally, the US and the EU have exhibited marked differences in relation to key IEL principles, from precaution to differential treatment.

The aim of the Symposium, then, is twofold. First, it aims to engage in a search for more sophisticated, nuanced and complex approaches to environmental problem solving and underlying theory of IEL based on the changing nature of the field. Following last year’s Rio+ 20 Conference, we are well placed to consider potential paradigm changers, including whether the concept of sustainable development is still the best idea around which to organize legal protection of the global environment; whether alternative concepts/models might be more effective in stopping environmental harm and improving environmental quality; whether the current preoccupation with “implementation” best serves global environmental protection; and whether international law is up to the regulatory challenges posed by continuing world population growth and increasing consumption.

Secondly, the Symposium also seeks to intensify the transatlantic debate about these important questions, as well as to bring experts from various disciplines and backgrounds to discuss cutting-edge research in the field of IEL. As President Obama begins his second term in office, it seems an opportune time to not only consider the changing nature of IEL, but also to revisit and explore anew the nature, the extent, and indeed the reality of this transatlantic divide and its significance for the development of IEL. Do IEL scholars make too much of US/EU divergences? How do these divergences manifest in specific environmental regimes? What role, if any, do academic, scholarly or theoretical traditions play in the perception of the EU/US divide? Has the Obama administration worked to widen or narrow this divide?

Call for Proposals and Abstracts

The Co-Chairs and Convenors cordially invite the submission of proposals and abstracts on the theme of The Changing Nature of International Environmental Law: Evolving Approaches of the United States and the European Union. Papers presented at the Symposium will be selected through a competitive process. The selection process will be based exclusively on the scholarly merit of proposals received and priority will be given to unpublished papers and work in progress. We welcome proposals from practitioners, diplomats, academics and graduate students that are attentive to one or more aspects of the Symposium theme outlined below.

Each submission should include an abstract of the proposed presentation of no more than 700 words in English or French and a short CV in English or French. Applications should be submitted in a WORD or PDF format. They should be emailed to both Alejandra Torres Camprubi (atorrescamprubi@yahoo.es) and Timo Koivurova (timo.koivurova@ulapland.fi). Please indicate “2013 ASIL/ESIL Symposium” in the subject line of the email.

Deadline The deadline for submission of proposals is Wednesday, 15 May 2013. The outcome of the selection process will be notified to all applicants by Monday, 10 June 2013. After selection, each presenter will be expected to produce a draft paper by Monday, 2 September 2013 for circulation among the other Symposium participants.

Basic Symposium details

It is anticipated that the Symposium will run for one day and a half. It will commence on Friday, 22 November 2013 at noon and will run until 5.30 pm on the first day. It will conclude on Saturday, 23 November 2013, but the day will be full with a 9.00 am start and a 5.00 pm wrap up.
The organizers envision a total of six panels – two panels on the first day and four panels on the second – with each panel comprised of four presenters. The contours of each panel will be determined based on proposals and abstracts that are accepted.

Publication

We believe that publishers will be interested in publishing the proceedings of the Symposium in an edited volume. The organizers reserve the right to publish the selected papers. Before publication, all papers will be submitted to peer-review.

Writing in 1964, Pieter Kooijmans challenged the principle of legal equality of states: it would have to prove its value or be discarded. He also predicted the relevance of the principle for a new subject of international law: the individual. Almost fifty years later, this article reviews how the principle has fared in international criminal law, a field of international law relevant both to states and to the individual. The review shows how the emergence of a more vertical international legal order has weakened the position of the principle of equality between states. The weakening of the principle in the relation between states has in turn affected the equality between individuals, which has contributed to further actual inequality between states.

Contrary to one of Kooijmans’s scenarios, the emerging international legal order has not diminished the role of the ‘factual conditions of power politics’. Legal questions on permitted differentiations always involve inherently political assessments. For instance, Kooijmans’s concept of ‘juridically relevant’ differences requires a determination of which differences are ‘of intrinsic value for the existence of legal order’, and thus a decision on what that order should look like and how it is to be pursued. Moreover, factual conditions of power politics continue to encroach upon the principle of legal equality. Perhaps the principle of legal equality, like the fight against impunity, is more of an ideal than a reality. But the pursuit of the fight against impunity has thus far undermined the fight for more equality.

Symposium:
Just and Unjust Warriors:
Marking the 35th Anniversary of Walzer’s Just and Unjust Wars

Gabriella Blum & JHH Weiler, Preface

Robert Howse, Thucydides and Just War: How to Begin to Read Walzer’s Just and Unjust Wars

JHH Weiler & Abby Deshman, Far be it from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and Jus in Bello

Marko Milanovic, A Non-Response to Weiler and Deshman

Terry Nardin, From Right to Intervene to Duty to Protect: Michael Walzer on Humanitarian Intervention

The last time I spoke at Georgetown University Law Center was on the occasion of the eightieth anniversary of the Legal Adviser’s Office, known affectionately at the State Department as “L.” I have now been the Legal Adviser at the State Department for more than three and a half years. During that time, at nearly every public event I attend, I find myself being asked questions about one issue: armed conflict. Nearly every question I am asked involves Guantanamo, Afghanistan, cyber war, detention, and targeting practices. While these key areas raise tremendously important legal questions, in fact, they do not occupy even half of my time. More than half of my time is spent on a completely different set of issues, which I almost never get a chance to talk about publicly.

So today, let me talk not about international conflict, but about the other side of what I do: the legal aspects of international cooperation and engagement. Specifically, let me address how we in the Obama Administration have handled a broad set of activities that can be grouped loosely under the rubric of “twenty-first-century international lawmaking.”

Increasingly, war is and will be fought by machines – and virtual networks linking machines - which, to varying degrees, are controlled by humans. This book explores the legal challenges for armed forces resulting from the development and use of new military technologies – automated and autonomous weapon systems, cyber weapons, “non-lethal” weapons and advanced communications - for the conduct of warfare. The contributions, each written by scholars and military officers with expertise in International Humanitarian Law (IHL), provide analysis and recommendations for armed forces as to how these new technologies may be used in accordance with international law. Moreover, the chapters provide suggestions for military doctrine to ensure continued compliance with IHL during this ever-more-rapid evolution of technology.

The world is changing rapidly and there are increasing calls for international and legal responses. Social changes in areas such as globalization, development, demography, democratization and technology are growing in importance for both citizens and states. Over time this will be reflected in international law and organizational structures, which will have more prominence in governmental functions. In this sense the future of international law is global government. This book draws together the theoretical and practical aspects of international cooperation needs and legal responses in critical areas of global concern and predicts that a more extensive, powerful and varied international legal system will be needed to cope with future opportunities and challenges.

Supply of, and demand for, innovation in the techniques and governance of development finance have both been growing rapidly. As recently as the 1990s, foreign capital flowed to low-income countries mainly through a limited set of channels. Most finance involving public actors moved through channels controlled by a relatively small number of international financial institutions and agencies sponsored by longstanding OECD member governments. Reasonably simple financial instruments such as grants, concessional loans and subsidized political risk insurance preponderated.

This picture has changed radically. Some of the recent innovations involve new types of organizations and other new actors, such as social enterprises, public-private partnerships, and public agencies in non-OECD countries or OECD newer members. Other innovations involve new financial instruments, such as social bonds of the kind pioneered by the International Finance Facility, peer-to-peer micro-lending of the kind pioneered by Kiva, index-based weather insurance, infrastructure financing from entities in China with an approach to conditionality distinct from that of the multilateral development banks, or the World Bank’s new program-for-results instrument. Whether particular innovations or suites of innovations represent effective means of promoting development — and the meaning of effectiveness for this purpose — are the subject of burgeoning research.

Behind this lie some fundamental lines of inquiry which this workshop aims to address: What are the conditions under which effective innovations in development finance emerge and flourish? What roles do law and public policy play in creating those conditions? What have been the pathologies or pitfalls of such innovations and how can these be avoided? To what extent are theories of innovation and diffusion that have been formulated in other contexts – as well as associated concepts such as network effects, path dependency, open innovation or user innovation – useful in understanding innovation in development finance? This workshop will examine the causes and consequences of innovation in development finance and the implications for law and public policy, including roles of law in innovation, and the adequacy and significance of innovation in development finance law and governance.

We investigate the extent to which citation and publication patterns differ between men and
women in the international relations literature. Using data from the Teaching, Research, and
International Policy project on peer-reviewed publications between 1980 and 2006, we show that
women are systematically cited less than men after controlling for a large number of variables
including year of publication, quality of publication, substantive focus, theoretical perspective,
methodology, tenure status, and institutional affiliation. These results are robust to a variety of
modeling choices. We then turn to network analysis to investigate the extent to which the gender
of a given article’s author affects that article’s relative centrality in the network of citations
between papers in our sample. We show that articles authored by women are systematically less
central than articles authored by men, all else equal. We argue and then show that this is likely
due to two factors: (1) women tend to cite themselves less than men, and (2) men (who make up
a disproportionate share of IR scholars) tend to cite men more than women. This is the first study
in political science to reveal significant gender differences in citation patterns. This finding is
especially significant since citation counts have historically been viewed as a relatively objective
and important measure of the quality and impact of research.

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level, but also regionally and unilaterally. In response to Iran's nuclear programme, for example, sanctions have been imposed by the UN Security Council and also by the European Union and the USA. The nature of measures imposed has also changed: from comprehensive sanctions regimes (discredited since Iraq in the 1990s) to 'targeted' or 'smart' sanctions, directed at specific individuals or entities (through asset freezes and travel bans) or prohibiting particular activities (arms embargos, and export prohibitions).

Bringing together experts from both academia and practice, this conference will provide both an overview of these recent developments and an analysis of the problems that they have engendered. Panels will examine the contemporary practice of the various actors, and the legality (or otherwise) of their activities. Issues considered will include the human rights of persons targeted, and the mechanisms established to challenge listing; as well as, in cases of sanctions imposed by regional organizations and individual States, the rights of third States and their nationals.

In Filling Regulatory Gaps in High Seas Fisheries, author Yoshinobu Takei investigates the regime of high seas fisheries from the perspective of international law and considers whether there are regulatory gaps in high seas fisheries and, if so, how they should be filled. The book focuses on topical issues such as the management of deep-sea fisheries on the high seas and the protection of vulnerable marine ecosystems.
In view of the current state of marine fisheries resources, together with ecosystem concerns, swift and effective action is required to improve fisheries management, in particular for high seas fisheries. Takei thoroughly analyzes the current state of affairs and convincingly suggests steps to be taken in the future.

One of the most remarkable developments in international commercial law over the last fifty years has been the gradual acceptance of the existence of a new merchant ‘law’, or lex mercatoria, spontaneously generated by the international community in the shadow of national legal orders. While the notion that there might be law beyond the state aroused the interest of legal scholars and theorists around the world, few wondered whether international commercial actors had a genuine interest in the development of an autonomous transnational law. This Article offers empirical evidence suggesting that commercial parties almost never opt into lex mercatoria pursuant to their freedom to contract, but instead use that freedom to select a particular national law to govern their contracts. This conclusion begs the question of whether anybody else might benefit from lex mercatoria.

In a groundbreaking article published in 2005, Christopher Drahozal argued that the idea had lost practical significance and offered a signaling theory of lex mercatoria: the interest in the idea can be explained by the willingness of would be arbitrators to market themselves. While essentially agreeing with Drahozal, this Article offers two other theories explaining the development of lex mercatoria. First, I argue that deciding disputes on the basis of lex mercatoria can bring important benefits to international arbitrators. If that is the case, though, their interests may conflict with that of the parties who hired them. That raises an agency problem which needs to be both acknowledged and addressed. Secondly, I demonstrate how lex mercatoria can also benefit organizations which are involved in the business of producing model contracts and maintain that the active promotion of the use of non-state law – thereby side-stepping mandatory rules of national law – is intended to reduce the costs of producing international model contracts by such organizations.

Whereas in the 1980’s many developed countries privatized their state-owned enterprises (SOEs), followed by developing countries after the end of the cold war in 1990, this trend has reversed in the last ten years. First, ever more countries create Sovereign Wealth Funds (SWFs) which engage in all sorts of economic investments and activities. Second, SOEs are again in fashion, partially due to the financial and economic crises in developed countries which led to (partial) nationalization of some failing enterprises. In short: ever more states engage in business activities in one way or the other and the boundaries between state activities and commercial activities become blurred.
In this paper, I would like to suggest some criteria where immunity should be granted (and where not) drawing partially on economic theory. While the paper does not give definite answers, it might help to consider some of the issues from a functional point of view and find answer for both of the described problems.

The product of a three-year project by twenty renowned international law scholars and practitioners, the Tallinn Manual identifies the international law applicable to cyber warfare and sets out ninety-five 'black-letter rules' governing such conflicts. It addresses topics including sovereignty, State responsibility, the jus ad bellum, international humanitarian law, and the law of neutrality. An extensive commentary accompanies each rule, which sets forth the rule's basis in treaty and customary law, explains how the group of experts interpreted applicable norms in the cyber context, and outlines any disagreements within the group as to each rule's application.